Managing Your Workplace for the Future: Pressing Staffing Challenges in Pooling

Tracey L. Cline-Pew, SPHR, SHRM-SCP, Director of Human ResourcesLanny Richmond, II, Code & Opinions Attorney

Arkansas Municipal League

Getting Back to Basics: Talent Acquisition

• It takes the right people with the right skills to grow your organization.• Simple, right??• WRONG!

Job Descriptions: What are you looking for?

• Do you know exactly what you are looking for from a new hire?

• Developing a job description will help you more fully understand what you are looking for – and will help you find the right person to fill that role.

• If you do it well, a good job description will work for you by encouraging candidates who are a good fit; and helping others applying for the job self-select out of the process.

• The work you do up front will lead to a better outcome.

According to a 2017 Glassdoor site survey, the following are the top five things candidates consider before accepting a job offer:

• Details on salary/compensation packages.

• Details on benefit packages.

• Details on what makes the company an attractive place to work.

• Basic company information (location(s), number of employees, revenue, industry competitors, etc.).

• Company mission, vision and values.

What are job seekers looking for?

Writing a Great Job Description

• Get real with the job title.

• Customize the role with the mission.

• Be flexible with job requirements.

• Format for mobile.

• Do your research.

• Never miss an opportunity to sell your company as a great place to work.

• Don’t forget the legalities.

Job titles are important for many reasons.

• First and foremost they describe the job.

• Secondly, they are what appear when a candidate is conducting an online job search. Think about what a search engine will hit on.

• Although there is a trend to use creative job titles, a candidate is not likely to look for an “IT Guru Extraordinaire” position. Same goes for “Social Media Maven,” “HR Hero,” or “Rock Star Realtor.”

Job Titles

Customize the Role to the Mission

To attract candidates who will do well in your workplace, describe how the role ties into your company mission and culture.

• Mention exciting challenging projects candidates will work on.

• Think career growth and development!

• Play up things such as a short commute, local transit options and other work/life balance factors.

• Use this as an opportunity to “sell” your company and culture.

Too many requirements may deter potentially great candidates from applying. Especially new grads whose lack of experience may be offset by enthusiasm and potential.

• Be clear on your “minimum” and “preferred” qualifications because candidates look at preferred as a non-requirement.

• Be specific when listing the essential duties and responsibilities of the job.

• Focus on where you are going, not where you have been.

Job Requirements

Format for Mobile

• Most applicants use social media and online tools in their job search. Sites such as Indeed, Monster, and Zip Recruiter have cornered the recruiting market.

• Make sure that your job descriptions fit a mobile platform.

Do Your Research

How do you find out what the essential functions of a job are?

• If possible, interview the person vacating the position.

• Discuss the position with the leadership and support team that works closely with the position.

• Look into the future and decide whether or not the position has or should evolve to more closely match your company’s goals and mission.

• Google the titles of your open position to learn how others position their roles. There is nothing wrong with a little competitive intelligence.

• Be sure to include behaviors that a candidate will need to fit into your company’s culture.

I Know What I Want, Now Where Do I Find It?

Creating the perfect job description is only half of the equation. Where do you find qualified applicants, especially for highly specialized positions such as those in self-funded pools? The answer can be as varied as the position itself.

Recruiting Internally and Externally

Internally

• Less expensive.• Doesn’t usually require

extensive training.• Faster hiring process.• Applicant knows the corporate

culture.• Good for employee morale.

Externally• Adds new knowledge, skills and

abilities to the work force.• Fresh perspective on current

position.• Outside talent may be needed

from a growth and development perspective.

• Small companies may not have a person internally with the skill set needed for a position.

Internal Recruiting

Internal recruiting typically consists of one or more of the following:

• Internal job posting.

• Nomination by manager.

• Knowledge, skills and abilities database.

• Succession planning.

Be sure to craft a policy that is fair and equitable to Internal applicants and sets expectations for employees applying for a position, and that is implemented consistently throughout the organization. Communication is key.

External Recruiting Basics

When recruiting external talent, the recruiting

function is also a marketing function. An organization

must promote itself and the employment opportunity.

A good marketing campaign targets both active and

passive job seekers.

Two Types of Job Seekers

Active• Candidate actively seeking

employment opportunities.• Opportunities posted on career

websites will reach this candidate.

Passive• Happy and successful working

at another organization.• Not actively looking for a new

opportunity so messages posted on career websites will not reach this person.• Direct sourcing is the best way

to reach passive candidates.

Great Job Postings

A good job description is not enough to attract qualified candidates. Your job posting should include a “what's in it for me” message. • What is unique about your company?• Is there a career path?• Benefits?• Interesting and challenging work?• High profile work or the opportunity to work with

industry leaders?• SALARY!You are marketing your organization and a great job posting should compel the right candidates to apply.

Tactics for External Recruiting

You’ve got a great job posting/campaign – so how do you get it to your target audience?

• Word of mouth.

• Third-party recruiters (headhunters)

• Temporary firms/temp-to-perm placement

• Technical schools, colleges and universities

• Government and community based programs

• Internet sites such as ZipRecruiter.com, Monster.com, Indeed.com, etc.

• Social Media (Facebook, Twitter)

• LinkedIn

• Professional publications

• Radio and television

• Billboards

The possibilities are limited only by your imagination!

Hiring Process and Impact of Social Media in Hiring

• EEOC Concerns• Constitutional Concerns• Other Concerns

Hiring Process and Impact of Social Media in Hiring

• Through social media, individuals voluntarily disclose a vast amount of personal information • This can range from what movies and books an individual enjoys,

to which political candidates the individual supports, to whom an individual spends his or her personal time. • Not surprisingly, many employers want to use this large quantity of

free data to vet candidates at some point during the interview process. • But should you?

Some non-legal concerns

• False Identity: How do you know that the “Lanny Richmond” Facebook page belongs to the same Lanny Richmond applying for the position?

• Inaccurate Information: How do you know whether the information posted is accurate?

EEOC Concerns – Gaskel v. Univ. of Kent.

• The Gaskel case serves as a cautionary tale. • The plaintiff was rejected for employment as a scientist after another

employee circulated an email detailing the plaintiff’s religious views.

• – which were visible on the plaintiff’s personal website – to members of the hiring committee.

• The Court denied the University’s motion for summary judgment on plaintiff’s Title VII claims of religious discrimination, finding that the plaintiff raised a triable issue of fact as to whether his religious beliefs were a motivating factor in the University’s decision not to hire him.

EEOC Concerns – Gaskel v. Univ. of Kent.

• Even if the impermissible information is not used in making the employment decision, the mere fact that the employer accessed the information may infer improper motive.• Some considerations if you can’t help yourself

• Make sure that decision makers are NOT vetting social media. This reduces the risk that “protected characteristics” are known by the decision-makers.

• There are also third-party vendors who can perform this task.

EEOC Concerns – State Laws

• As of the end of 2012, California, Illinois, Maryland, and Michigan had laws on the books prohibiting or limiting employers from asking employees for social media account information. • Similar bills were pending in Delaware, Hawaii, Kansas, Maine,16

Nebraska, New Hampshire, New Jersey, New York, Oregon, Texas, Utah, Vermont, and Washington. • In February 2013, Philadelphia became the first U.S. city to

consider a similar prohibition.

Issues for Public Employers – (Constitutional Concerns) – First Amend.

• Like other speech issues involving public employees, determining whether social media use is protected free speech depends on whether the social media activity is conducted in the employee’s capacity as a private citizen (and thus protected) or as part of the employee’s job duties (not protected).

• The same is true for new hires, or prospective employees.

How does Social Media Come into it?

• The Fourth Circuit held clicking the “like” button was both “pure speech” and a form of symbolic expression for First Amendment purposes. Bland v. Roberts, 730 F.3d 368 (4th Cir.2013). • “Liking” a Facebook comment generates a “pure speech” textual

statement, and is symbolic expression because the person liking the statement conveys a message of agreement with the statement likely to be so understood by persons who see it. Id.

Law Summary

• These are the basic rules which determine if you can limit speech, rather its in a memo or a Facebook post.

• Courts have noted that Facebook, and even “likes” on Facebook can be speech under the 1st Amendment.

• First, is the speech on a matter of public concern?

• Next, is the speech as an employee (unprotected) or as a citizen (protected)?

Scenario

• A victim coordinator for the County Prosecutor “likes” a Facebook post about police shooting. The status says “The victim did nothing wrong, the police aren’t trained and murdered my cousin.”

• Is the “like” protected?

Court’s Conclusion

• Maybe Not.

• “The Court concludes nonetheless that the interests of defendants prevail in the Pickering balance owing to the potential adverse effect of Ms. Vincent's “like” post on the efficient discharge of the law enforcement responsibilities of the County Attorney's office.”

• Vincent v. Story Cty., Iowa, No. 4:12-CV-00157-RAW, 2014 WL 10007079, at *16 (S.D. Iowa Jan. 14, 2014)

Scenario

• A County Attorney representing a Sheriff wrote and quoted the following:• I know I'm not supposed to talk politics anymore, but this opinion piece nails it.

Please—no comments ... but if you like it, share it.• “Working in high poverty areas doesn't excuse officers who use excessive force,

but police officers are dealt an unfair hand: communities with inadequate and unaffordable housing, few jobs and weak schools need more help than even the best–trained police service. Police officers can't help people make ends meet at the end of the month.”

• During nearly 250 years of slavery and 100 years of Jim Crow segregation, the US government and big corporations cut African Americans out of the economy. In the last 30 years, led by President Reagan and the Gingrich Republicans, something just as harmful happened: the systematic economic abandonment of black neighborhoods.

Is the a Matter of Public Concern?

• Palmer's Facebook posts address numerous matters of public concern. Moreover, Palmer did not speak about those matters in her professional capacity. Instead, she spoke about them as a private citizen on her personal Facebook page.

• LEAH PALMER, Plaintiff, v. THE COUNTY OF ANOKA, a Minnesota Mun. Corporation; & ANTHONY PALUMBO, in his individual & official capacity, Defendants., No. 16-CV-0672 (PJS/JSM), 2016 WL 4098744, at *4 (D. Minn. July 28, 2016)

But how does the Pickering Test Come Out?

• The need for harmony in the work place; (2) whether the government's responsibilities require a close working relationship; (3) the time, manner, and place of the speech; (4) the context in which the dispute arose; (5) the degree of public interest in the speech; and (6) whether the speech impeded the employee's ability to perform his or her duties.

Court’s Decision

• The Court cannot emphasize enough the unique nature of [The Attorney and Sheriff’s] positions. Palumbo was elected by the people of Anoka County to serve as the County's chief legal representative. It was critical that all citizens of the County—including Republicans—have confidence in his judgment, fairness, and integrity.

• Among Palumbo's most important responsibilities were to give confidential legal advice to Sheriff Stuart and his deputies; to represent Sheriff Stuart and his deputies when they were sued; and to decide whether to prosecute criminal cases submitted by law–enforcement officers. Thus, it was critical that all law–enforcement officers working in and with Anoka County have the utmost confidence in Palumbo.

Scenario

• Deputy visited the Facebook page (the “Campaign Page”), which was named “Jim Adams for Hampton Sheriff,” and he clicked the “like” button on the Campaign Page. (The person opposing his current boss).

• When he did so, the Campaign Page's name and a photo of Adams—which an Adams campaign representative had selected as the Page's icon—were added to Deputy’s profile, which all Facebook users could view. On Deputy’s profile, the Campaign Page name served as a link to the Campaign Page. Deputy’s clicking on the “like” button also caused an announcement that Deputy liked the Campaign Page to appear in the news feeds of Deputy’s friends. And it caused Carter's name and his profile photo to be added to the Campaign Page's “People [Who] Like This” list.

Court’s Conclusion

• Finally, for the same reasons that we hold that Carter has created a genuine factual issue regarding whether he was terminated because of his lack of political allegiance to the Sheriff, we conclude that Deputy has created a genuine factual issue concerning whether his Facebook support for Adams was also a substantial factor.

• The Sheriff warned Carter that his support of Adams would cost him his job, and a jury reasonably could take the Sheriff at his word. Bland v. Roberts, 730 F.3d 368, 388 (4th Cir. 2013), as amended (Sept. 23, 2013).

Some other things to keep in mind

• The Stored Communications Act, 18 U.S.C. § § 2701-2711, prohibits the unauthorized and intentional access of stored electronic communications, including access to email and unauthorized viewing of a password protected website. • This does not prohibit authorized access, and either the user or

the provider of the website can give authorization. • However, mere use of employer equipment, such as a computer, is

not itself authorization. Your social media policy, or another policy, should make clear to employees that they are not to use public equipment for personal business and all activity on public equipment will be monitored.

Fair Credit Reporting Act

• In addition, the Fair Credit Reporting Act, 15 U.S.C. § 1681, requires that employers, including public employers, follow notification and disclosure requirements when the employer seeks consumer reports.

• Websites that compile personal information about individuals from public records and social media accounts might fall under this act’s coverage.

Employee Retention – Key Factors

• The need for organizations to retain their talents is crucial.

• No single factor determines employee retention.

• This is going to be a holistic issue for your company.

• Most importantly know your employee.

Employee Retention Statistics - Development

• One Study found a direct correlation between job resignation and issues related to career development.

• Rolfe, H. (2005) Building a Stable Workforce: Recruitment and Retention in the Child Care and Early Years Sector. Children and Society, 19, 54-65. http://dx.doi.org/10.1002/chi.829.

• Another study similarly identified factors pertaining to career growth opportunities, which are: advancement plans, internal promotion and accurate career previews. These combined were a significant reason for employees decisions to stay or leave.

• Prince, B.J. (2005) Career-Focused Employee Transfer Processes. Career Development International, 10, 293-309. http://dx.doi.org/10.1108/13620430510609136.

Employee Retention Statistics -Compensation

• The relation between pay and retention has been studied many times.• Researchers are divided about the impact of pay on retention. • For some, pay strongly correlates with the employee decision to stay in the

organization. • For others, pay does not have a direct influence on retention.

• Bodjrenou Kossivi, Ming Xu, Bomboma Kalgora, Study on Determining Factors of Employee Retention, https://file.scirp.org/pdf/JSS_2016053009190527.pdf.

• One study found a remote connection between nurse’s wages and retention. • See above study.

Employee Retention Statistics – Work-Life Balance

• “Work-life balance is becoming gradually more central for employees and tends to affect employees’ decision to stay in organization.”

• “The balance between personal and professional lives is determined by the amount of sacrifice the individual is ready to make at the expense of other areas of life.”• Bodjrenou Kossivi, Ming Xu, Bomboma Kalgora, Study on Determining

Factors of Employee Retention, https://file.scirp.org/pdf/JSS_2016053009190527.pdf.

• A noted direct relation between employees’ decision to stay and work-life balance exists.

Other Factors to Consider

• Some other relevant factors to consider are: • Leadership

• Various studies noted that the way people are managed and the leadership style have direct influence on an organization ability to maintain its workforce.

• Work Environment• “A conducive work environment appears to be an essential factor in employee

retention.” • Social Support• Autonomy

• Bodjrenou Kossivi, Ming Xu, Bomboma Kalgora, Study on Determining Factors of Employee Retention, https://file.scirp.org/pdf/JSS_2016053009190527.pdf.

QUESTIONS????

• General HR?

• Legal?

Tracey L. Cline-Pew, SPHR, SHRM-SCP tpew@arml.org

Lanny Richmond, Code & Opinions Attorney lrichmond@arml.org